Robert G. G. Moulder v Commission of Inquiry into Historic Losses of Land in Bermuda

• Jurisdiction: Bermuda
• Judge: Southey AJ
• Judgment Date: 21 October 2022
• Neutral Citation: [2022] SC Bda 78 Civ
• Docket Number: CIVIL JURISDICTION
• Court: Supreme Court (Bermuda)
• Year: 2022

In the Matter of an Application for Judicial Review Under Order 53, Rule 3 of the Rules of the Supreme Court 1985

Between:

Robert G. G. Moulder

Applicant

and

Commission of Inquiry into Historic Losses of Land in Bermuda

Respondent

BM 2022 SC 78

[2022] SC (Bda) 78 Civ

Before:

Assistant Justice David Hugh Southey KC

CIVIL JURISDICTION

2022: No. 178

In The Supreme Court of Bermuda

Costs of vacated hearing — Costs of applications for a stay and disclosure — Extent to which costs should be assessed on indemnity basis.

Appearances:

Mr Robert G. G. Moulder, Applicant in Person and Ms Judith Chambers, McKenzie Friend

Mr Delroy Duncan KC and Mr Ryan Hawthorne for the Respondent

RULING

Southey AJ

Introduction

1 The circumstances that have led to this judgment are set out below. In essence, the Respondent in this application for judicial review seeks indemnity costs that resulted from:

• a. A vacated hearing listed for 17 and 18 October 2022.

• b. A failed application for disclosure.

• c. A failed application for a stay.

2 I thank Mr Moulder, who appeared as a litigant in person, and Mr Delroy Duncan KC and Mr Ryan Hawthorne, who represented the Commission of Inquiry, for their assistance.

Factual background

3 In a reserved judgment delivered on 5 August 2022 (“the Judgment”), I ordered a rolled-up hearing in relation to this application to judicial review. The Judgment should be read with this judgment. As a consequence, I will not repeat the matters set out in the Judgment.

4 I refused leave in relation to a number of grounds. The grounds in relation to which I ordered a rolled-up hearing were:

• “1. The Commission of Inquiry erred by failing to hold the Applicant's case in public and failing to disclose the Commission's records regarding the case.

• 2. The Commission of Inquiry's reasons for making no recommendation in the Applicant's case were flawed. In particular, there was no basis for refusing to consider matters that followed the order of the Court of Appeal returning Mr Moulder's land. The Commission also erred by refusing to consider criminality.”

5 The limited nature of the grounds in relation to which leave was granted is significant. I did not order some free-standing investigation of the Commission of Inquiry's work. I concluded that illegality might be established in relation to certain specific decisions.

6 On 5 August 2022 I set a number of directions (“the Order”). These were intended to result in the trial of this matter on 17/18 October. The directions included a direction for the Respondent to file evidence by 9 September 2022. In fact the evidence was filed on 12 September 2022. I accept that there was good reason for that in light of Hurricane Earl. Nobody has suggested that there was not good reason.

7 The Applicant was initially directed to file evidence in response by 30 September 2022. Following Hurricane Earl it appears to have been agreed between the parties that any evidence should have been filed by 3 October 2022.

8 Orally the Applicant has suggested at times that the volume of exhibits attached to affidavit filed on behalf of the Respondent placed a significant burden on him when complying with directions. I do not accept that. As Mr Hawthorne, attorney for the Commission of Inquiry, has pointed out in an affidavit filed on behalf of the Respondent, the evidence in response consisted of:

• “(a) Pages 1–532 contained: (a) the Notice in the Official Gazette; (b) the COI Rules; and (c) the COI Report.

• (b) Pages 533–861 contained the documents submitted by Mr. Moulder to the COI…

• (c) Pages 863–878 contained correspondence between Mr. Moulder and the COI;

• (d) Pages 877–898 contained adverse notices sent out in relation to Mr. Moulder's claim before the COI; and

• (e) Pages 899–1062 contained the transcripts of Mr. Moulder's hearing before the COI.”

9 It appears to me that the documents up to page 898 are documents that Mr Moulder had access to. Indeed, it is arguable that he was obliged to file them in order to comply with his duty of candour.

10 On 21 September 2022 a Constitutional Motion brought against me (as well as the Registrar) alleging that I had breached Constitutional fair trial rights was withdrawn at a hearing in this court. I understand it was withdrawn on the basis that Mr Moulder would be seeking a stay from me in light of pending appeals in 2 other matters that I have determined and that relate to the Commission of Inquiry. However, no steps were taken following that hearing to alert this Court that a stay would be sought or make a formal application for a stay.

11 Mr Moulder has filed affidavit evidence stating that early on 3 October 2022 he became aware that the transcripts disclosed by the Respondent did not include the transcripts for a hearing on 11 March 2021. This was said to be relevant because the final report of the Commission of Inquiry stated that Mr Moulder “appeared before the COIon … 11th March, 2021”.

12 Despite the pending deadline, Mr Moulder did nothing until he e-mailed the Commission's attorneys on 4 October 2022 (after the deadline for the service of evidence passed). The e-mail stated:

“As mentioned during the hearing re. Constitutional applications 206 of 2022 (which, as you know, was withdrawn and not dismissed) on 21st September, I will be seeking a stay of the above proceedings and intend to do so at the hearing scheduled for 7 ^th October.

I have not yet filed an Affidavit in response to that filed by Mr Perinchief but intend to file an affidavit in support of the stay as soon as possible — and am hopeful given all the circumstances, including the Notices of Appeal that have been filed, you will not oppose this request for a stay.

In the meantime:

• 1. I am asking to be provided with a copy of the 4th August letter to Judge Southey that you referred to during the handing down of judgments on 5th August.

• 2. In his affidavit, at paragraph 12, Mr. Perinchief refers to my having given evidence before the COI on 26 January 2021, 4 February 2021 and 23 March 2021 and exhibits transcripts from those dates. However, in the COI Report (at page 421, but page 439 of the Perinchief exhibit) there is an additional date shown of 11th March 2021. I am therefore requesting a copy of the transcript and recording from this date.

• 3. I am also requesting the actual recordings of all hearings, as I would like to check these against the transcripts …”

13 I have set out the terms of this e-mail in full as they appear to me to be important. I accept submissions made on behalf of the Commission of Inquiry that:

• a. This e-mail appears to be seeking a stay because of pending appeals. I have reached that conclusion because it references the hearing regarding the Constitutional Motion and the notice of appeal.

• b. It appears that it was assumed by Mr Moulder that there was no need to serve evidence in light of the application for a stay. I say that because the issue of the outstanding deadline to serve evidence was not addressed.

• c. Reference is made to the transcript of 11 March 2021 but it is not suggested that this justified a stay.

14 The directions provided for a case management hearing on 7 October 2022. Mr Moulder argues that I essentially indicated that I would consider whether there were any problems with the matter with the trial of this matter proceeding. As a consequence, it was open to him to raise the stay applications and his concerns about inadequate disclosure at that hearing. I accept that as a litigant in person, Mr Moulder may not have understood the purpose of a case management hearing. However, that does not excuse the fact that Mr Moulder appears to have concluded that he could unilaterally ignore the order for service of evidence. If disclosure issues meant a complete affidavit could not have been filed by Mr Moulder, a partial affidavit could have been filed addressing the Respondent's evidence as best as possible. The order to serve evidence remained effective until varied or set aside.

15 On the date of the case management hearing, an affidavit was filed by Mr Moulder. This affidavit was filed almost immediately before the hearing so that the Respondent had no opportunity to instruct its counsel regarding it. No formal application for a stay or for disclosure was lodged.

16 The affidavit filed by Mr Moulder states, among other matters, that:

It should be noted that the points made (save for the one about the missing transcript) could have apparently been made soon after the service of the Respondent's evidence. However, they were not.

• a. The Respondent had filed evidence accompanied by exhibits numbering 1061 pages.

• b. The exhibits had included the transcripts of the hearings when Mr Moulder had given evidence. That had been surprising as Mr Moulder had previously been denied the records maintained by the Respondent in relation to his case.

• c. There was a missing transcript. That had been raised with counsel to the Commission on 4 October 2022.

• d. Notice of appeals have been filed in relation to related matters.

• e. As a consequence of these matters, the Applicant had not been able to complete his affidavit.

17 Orally at the case management hearing Mr Moulder made it clear that if the stay application was refused, he would not be in a position to file bundles or a skeleton argument (at least in time to enable the Respondent to have a fair opportunity to prepare for a substantive hearing).

18 Having heard the parties I concluded that the hearing scheduled for 17 October 2022 could not proceed. In essence that was because I could not fairly determine the merits of a stay application without having a response to the argument that there had been a failure to disclose full transcripts. I was also concerned that the failure of the Applicant to progress matters would make it impractical for matters to proceed...